JOSEPH WONSETLER V. BOARD OF EDUCATION OF THE CITY OF WOODBURY, GLOUCESTER COUNTY, 8/17/11, (#325-11)

#325-11 (OAL Decision: http://lawlibrary.rutgers.edu/oal/html/initial/edu04504-11_1.html)
JOSEPH WONSETLER, 	:
PETITIONER, 	:
V. 	: 	COMMISSIONER OF EDUCATION
BOARD OF EDUCATION OF THE CITY 	: 	DECISION
OF WOODBURY, GLOUCESTER COUNTY,
:
RESPONDENT.
:
SYNOPSIS
Petitioner – formerly a custodian employed in respondent’s district under a series of one year
contracts – challenged the Board’s termination of his employment in the middle of his annual
contract. 	Petitioner contended that following his termination he was denied a written statement of
reasons and an appearance before the Board, contrary to his right to such an appearance pursuant to
Donaldson v. Board of Education of North Wildwood, 65 N.J. 236 (1974). 	The Board argued that
petitioner had failed to state a claim upon which relief can be granted, as no such right to an
appearance before the Board exists. The matter was transferred to the Office of Administrative Law
(OAL) as a contested case, and both parties filed motions for summary decision.
The ALJ found, inter alia, that: the essential facts in the matter were not in dispute, and the matter
was ripe for summary decision; resolution of this matter lies in the application of the statutory
provisions of N.J.S.A. 18A:27-4.1 (a) and (b); the plain language of N.J.S.A. 18A:27-4.1 (a) applies
to matters involving a Board decision to remove an employee who has no tenure protection, and
includes no requirement for any notification of the recommendation to remove, nor does it contain
any language incorporating a right to a written statement of reasons for termination or an informal
appearance before the Board; 	these rights are included in the language of subsection (b) of the
above, which deals specifically with non-renewal determinations; and accordingly, there is no
support for applying the principles of Donaldson, supra, in cases involving removals or terminations.
The ALJ ordered the petition dismissed.
Upon full review and consideration, the Commissioner concurred with the ALJ that petitioner’s
rights were not violated when the Board terminated his employment pursuant to N.J.S.A. 18A:27-4.1
(a), without providing him with a written statement of reasons or a Donaldson hearing. Accordingly,
the Commissioner adopted the Initial Decision as the final decision in this matter.
This synopsis is not part of the Commissioner’s decision. It has been prepared for the convenience of the reader. It
has been neither reviewed nor approved by the Commissioner.
August 17, 2011

OAL DKT. NO. EDU 4504-11
AGENCY DKT. NO. 54-3/11
JOSEPH WONSETLER, 	:
PETITIONER, 	:
V. 	: 	COMMISSIONER OF EDUCATION
BOARD OF EDUCATION OF THE CITY 	: 	DECISION
OF WOODBURY, GLOUCESTER COUNTY,
:
RESPONDENT.
:
The record of this matter and the Initial Decision of the Office of Administrative Law
(OAL) have been reviewed. 	Petitioner’s exceptions and the Board’s reply thereto – filed in
accordance with the requirements of N.J.A.C. 1:1-18.4 – were fully considered by the Commissioner
in reaching his determination herein.
Petitioner challenges the Administrative Law Judge’s (ALJ) conclusion – on page 7
of his decision – that “[w]hile there may be much to say for the inclusion of Donaldson1
Petitioner advances that in 1974, Donaldson, supra, set forth the guiding principle
that an employee who is not retained should have an opportunity for an informal appearance before
the Board. 	Such right, petitioner maintains, exists independent of any statutory enactment.
He charges that what happened in 1994 and 1995 is no more than a legal red herring in this matter.
rights in
removal/terminations…, in the face of [N.J.S.A. 18A:27-4.1] (a) and (b) by the Legislature, there is
no support for applying Donaldson to this sort of termination.” In so concluding, petitioner charges,
the 	ALJ 	failed 	to 	recognize 	the 	legislative 	history 	which 	resulted 	in 	the 	adoption 	of
N.J.S.A. 18A:27-4.1 in 1995. (Petitioner’s Exceptions at 1)
1 Donaldson v. North Wildwood Bd. of Ed., 65 N.J. 236 (1974)

Specifically, he avers, in 1994 the Appellate Division overturned the State Board of Education and
ruled that a local school board had the authority to employ a teacher who had not been recommended
by the chief school administrator.2
In reply, the Board proposes that – irrespective of the petitioner’s reliance on
Donaldson – N.J.S.A. 18A:27-4.1 embodies all the protection a terminated or non-renewed school
employee is entitled to. Citing the New Jersey Supreme Court’s decision in Leang v. Jersey City Bd.
of Educ., 198 N.J. 557, 578-79 (2009) – wherein the Court stated:
In 1995 the Legislature reacted, petitioner maintains, by adopting
N.J.S.A. 18A:27-4.1, which – according to the sponsor’s statement to the legislation – was to correct
the law as a consequence of this Appellate Division decision. 	Therefore, petitioner contends –
notwithstanding that this later legislative enactment in some measure “parrots the rights set forth by
the New Jersey Supreme Court in Donaldson” – the enactment of N.J.S.A. 18A:27-4.1 did not serve
to abrogate Donaldson, but was only intended to clarify the Appellate Division in Rotondo. Because
Donaldson did not interpret a right granted by statute, petitioner argues, the Legislature – through the
enactment of this statute – did not or could not abrogate the right conferred by Donaldson. (Id. at 2)
Those statutory rights (pursuant to N.J.S.A. 18A:27-3.2 and N.J.S.A. 18A:27-4.1) are
the embodiment of the process created by the Legislature through which plaintiff
could seek to challenge and to be heard about the Board’s non-renewal decision…
– the Board posits that it is clear that school employees who are transferred or removed pursuant to
N.J.S.A. 18A:27-4.1 (a) are entitled to only those rights enunciated by the statute, which does not
include a hearing for a terminated employee. 	The Board argues that, significantly, the Donaldson
Court did not contemplate encroaching on the role of the Legislature, as evidenced when it stated:
It must be borne in mind that our Legislature has not at any time said that no reasons
need be given when a nontenured teacher is not rehired. 	Bills bearing generally on
the subject have been introduced periodically but thus far no pertinent legislation
has been enacted; in the circumstances it is clear that no controlling inference as
to intent may be drawn from the legislative silence. 	(65 N.J. at 240, emphasis
added)
2 Rotondo v. Carlstadt-East Rutherford Regional High School District, 276 N.J. Super. 36 (App. Div. 1994).

Rather, the Board proposes, it is obvious that the Court intended its holding to be a gap-filler for law
that had been considered by the Legislature but not yet enacted. 	Subsequently, it points out, the
Legislature broke its silence and closed the gap by enacting a statutory provision which addresses
separately the termination of an employee and the non-renewal of an employee, according different
procedural rights to each. (Board’s Reply Exceptions at 1-2, quotation at 2)
Wholly irrelevant, the Board argues, is petitioner’s allegation that the sponsor’s
statement to N.J.S.A. 18A:27-4.1 indicates that this provision was designed to correct the law as a
consequence of the Appellate Division’s decision in Rotondo, supra. 	The plain language of this
statute, it avers, is abundantly clear:
[s]ubsection (b) of [this provision] addresses the renewal or nonrenewal of employees
and describes the rights of employees subject to nonrenewal: 	notice, a written
statement of reasons, and a formal appearance before the Board. 	Subsection (a),
which addresses the removal or termination of employees, does not articulate the
same procedural rights as those articulated in subsection (b). The plain language of
the statute “occupies the field” previously addressed by Donaldson, compelling the
conclusion that the petitioner, as a terminated employee, is not entitled to a hearing
before the Board. (Id. at 2-4, quotation at 4)
Finally, the Board advances – even assuming, arguendo, that the Commissioner were
to determine that petitioner was entitled to a hearing pursuant to N.J.S.A. 18A:27-4.1 – petitioner
would not be entitled to the relief he seeks here, i.e., back pay and attorney’s fees. 	It cites to
Roseann E. 	Brown 	v. 	Board 	of 	Education 	of 	the 	City 	of 	Camden, 	Camden 	County 	and
Annette D. Knox, Superintendent, Commissioner Decision #262-05, decided July 22, 2005, which in
turn cited to Dore v. Bd. of Educ. Of Bedminster Twp., Somerset County, 185 N.J. Super. 447, 455
(App. Div. 1982), for the proposition that “[a] school board’s lack of strict compliance with
N.J.S.A. 18A:27-4.1 is not sufficient reason to order the board to provide the employee with a
financial reward.” (Id. at 6) Moreover, it points out, even though N.J.S.A. 18A:27-4.1(b) sets forth a
procedure to be utilized when non-renewing employees, it nonetheless does not provide any penalty
should a board fail to follow these procedures. 	The Board, therefore, urges that because the

Legislature has conferred no power to impose a penalty for non-compliance with this statute, the
Commissioner does not have independent authority to either reinstate or impose a financial penalty
on the Board. Consequently, it proffers, even if petitioner were to prevail in this matter, he would be
entitled to no greater relief than the award of a hearing. (Id. at 6-7)
Upon 	full 	review and 	consideration, 	the 	Commissioner 	– 	finding petitioner’s
exception arguments without merit – concurs with the Administrative Law Judge, for the reasons
clearly presented in his decision, that petitioner’s rights were not violated when the Board terminated
his employment, pursuant to N.J.S.A. 18A:27-4.1(a), effective December 8, 2010, without providing
him with a written statement of reasons or a Donaldson3
Accordingly, the recommended decision of the OAL is adopted as the final decision
in this matter and the instant petition of appeal is hereby dismissed.
, supra, hearing.
IT IS SO ORDERED.4
ACTING COMMISSIONER OF EDUCATION
Date of Decision: August 17, 2011
Date of Mailing: 	August 19, 2011
3 As recognized by the ALJ, the Donaldson case itself was a non-renewal action, not a removal or termination.
4 This decision may be appealed to the Appellate Division of the Superior Court pursuant to P.L. 2008, c. 36
(N.J.S.A. 18A:6-9.1).